Cross-Examination: Report on the EJP Outreach Drug Law Symposium

Cross-Examination is a blog series about current legal issues in New Zealand produced by EJP Communications volunteers.

Sebastian Hartley

It has been said that if you want to change the world, you should start in your own backyard. EJP Outreach, and the Equal Justice Project as a whole, certainly ascribe to that philosophy.

As part of Outreach’s continuing drive to raise awareness of legal issues, both at the University of Auckland and in the wider community, they have held a number of public symposia over the last few years. In 2012, a highly successful seminar on Preventative Detention was held in conjunction with the New Zealand Centre for Human Rights Law, Policy & Practice, and 2013 saw symposia on Prisoners’ Right to Vote and Judicial Accountability.

Outreach has continued this tradition into 2014, holding a symposium on Drug Reform at the Faculty of Law on 28 April 2014. The panel included Khylee Quince, Senior Lecturer and Tumuaki/Associate Dean (Maori) at the Faculty of Law at the University of Auckland and Simon O’Connor MP (National – Tamaki). Unfortunately, Ms Ruth Money from the Sensible Sentencing Trust was unable to join the Symposium.

Ms Quince, who practiced criminal and family law before joining the faculty in 1998, has research interests in Māori and the criminal justice system, tikanga Māori and the law, and restorative justice and alternative dispute resolution.

Mr O’Connor, who trained as a Catholic priest (but did not seek ordination) and who holds a Masters of Political Studies from Auckland, has had a varied career in the commercial, public, and voluntary sectors, including working in chaplaincy at Mount Eden Prison, before gaining election to Parliament in 2011.

With the Government having announced its intention to pass legislation to immediately withdraw the sale of all ‘legal highs’ on the market the previous day, it was unsurprising that the symposium focused heavily on the debate around whether synthetic cannabis and other psychoactive substances should be prohibited or regulated. This policy change is discussed in depth here. There was also significant discussion of the broader social justice issues related to New Zealand’s current largely penal approach to drug law; particularly in connection to cannabis, and the emergence in recent years of a therapeutic jurisprudence. Both speakers viewed discussion of the ‘legal’ highs and other drugs as indivisible.

To the surprise of the audience, and perhaps to the even greater surprise of the speakers themselves, Ms Quince and Mr O’Connor were broadly in agreement on most points raised in the discussion, despite their differing political viewpoints.

Discussing the previous day’s announcement, both speakers noted that the Psychoactive Substances Act 2013 (the Act), as originally enacted, had been an interesting experiment in adopting a regulatory rather than a prohibitive approach to drugs. They agreed in principle as to the value of a regime that prohibited drugs on the basis of their actual harmfulness, rather than a moral aversion to such substances. Both speakers agreed that concerns of personal liberty are largely outweighed, in this case, by broader concerns about the social and medical costs of drug related harm, and supported prohibition.

Ms Quince, in particular, expressed concern at the regime under the Act focusing on the individual medical harms related to psychoactive substances, stating that broader social harms must also be accounted for. Mr O’Connor agreed that the social harms of synthetics, and all drugs, must factor into any calculus regarding being made legal or illegal.

Both speakers also agreed that the need for certain and effective law meant that the ‘cat and mouse’ style of prohibition practiced overseas was ineffective. For similar reasons, Ms Quince also considered the current de facto decriminalisation of marijuana through police discretion inappropriate because that discretion is less likely to be applied in dealing with possessory offenders from socially marginalized groups. Quince noted this with particular emphasis for Māori and Pasifika, thus contributing to inequality and undermining the rule of law.

The need to overcome this inequality Ms Quince argued, with Mr O’Connor agreeing, created a need to move beyond the penal approach, seen in the outdated Misuse of Drugs Act 1975, to a health and harm related approach. Both speakers also noted that the practical difficulties of effective enforcement of drug laws in an internet age meant that a strictly penal approach is inappropriate. Furthermore, that the widespread social acceptance of cannabis indicated that the communicative function of the law had been rendered impotent in this case.

The Psychoactive Substances Act 2013 (as enacted) was seen as an example of this approach. Both speakers also welcomed the adoption of aspects of therapeutic jurisprudence with the creation of Drug Courts in recent years. Mr O’Connor said that he was particularly keen for drug offenders to be seen as a vulnerable group in need of help, stating his belief that many of the offenders he worked with in Mount Eden Prison could have been helped by such courts.

Ms Quince was broadly in agreement, but expressed unhappiness at the idea that the law should be used as a drag net to help catch those falling through the cracks in society. However, she did acknowledge that the high degree of privacy available in prisons meant that new, and controversial, techniques for rehabilitation could be tried there that may prove politically unpalatable to deploy in the broader community. Fundamentally, however, Ms Quince believed it much better for us to change social structures so that no member in our society will view prison as a preferable alternative to their ordinary life.

Mr O’Connor was broadly in agreement, stating that whilst prison could be an effective place to help people, it was possible to provide treatment outside the justice system, and that prison is not an ‘enforceable rock bottom’. Even there, people do not necessarily want help, with Mr O’Connor of the belief that people cannot be helped until they want it.

Highlighting the difficulty inherent in negotiating the tension between pragmatism and principle in reforming drug law, Mr O’Connor stated that whilst drug courts are principally ideal, they are prohibitively expensive. Thus they are unlikely to become ubiquitous in the near future. Ms Quince, acknowledging these resource shortfalls, bemoaned the reality that the extant Drug Courts are likely to focus on the most harmful of offenders, creating an inequality of access to the emergent therapeutic jurisprudence. Both speakers appeared to accept the assumption that resource constraints will be the constraining factor on substantive drug law reform, followed by political pandering to popular penalism.

Despite agreeing with the need for drug reform in terms of offering greater therapeutic scope in drug policy, Mr O’Connor was consistent in his fundamental opposition to legalisation. This was grounded ultimately in a normative sense of the social harms of drugs outweighing the individual utility they offer. For this reason he was opposed to legalising any more drugs than presently available, even if those drugs are arguably less harmful than presently legal substances, such as alcohol and tobacco.

Ms Quince, despite voicing less strenuous opposition to the notion of legalisation, did express alarm at the on-going consequences of the normalised use of drugs such as marijuana, as seen in segments of the Māori community. She described a condition of ‘submerged citizenship’, in which the widespread use of drugs produces further economic and social marginalisation in addition to the marginalisation which often leads to drugs being used in the first place.

Whilst presenting differing analyses in support of their positions, it was heartening to see these two speakers expressing support for substantive movement away from penal tendencies in drug law. Both instead advocated movement towards a health and harm related approach.

With acknowledgment of a problem always being the first step to its resolution, the discussion at the Equal Justice Project’s first symposium of 2014 proved successful. The symposium thus confirmed the social value of airing legal issues and the hearing of a broad range of perspectives – a practice sure to continue at Outreach’s next seminar.

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